Peter Katembo Ngaira v Republic

uniform (PEXB2) and ran away with her bag. He added that he knew the Appellant as his tenant. 6. PW3 FNK the complainant’s mother testified that she found PW1 with torn uniform and that she had bruises all over her body. 7. PW4, CPL Eva Cherop testified that she was on the material day on duty when she received the attempted defilement report. She recalled that the appellant was brought to the police station by members of the public who had already meted out mob justice on him. She then took Appellant to hospital and recorded witness statement before preferring charges against the Appellant. 8. When placed on his defence the Appellant elected to make a sworn statement and called no witnesses. He testified that he was on 12 th May 2013 selling eggs at Kipkaren when he met police officers who asked him for his identification card and the sum of Kshs. 2,000 which he did not have. He stated that on failing to give the police the money that they had demanded from him, they arrested him and charged brought him to court on the allegation of attempted defilement. 9. At the hearing of the appeal, the appellant relied on his written submissions wherein he contends that the charge sheet was defective. He also took issue with the manner in which the trial court conducted the proceedings and submitted that the complainant’s evidence was taken without a voire dire examination being done in order to establish whether PW1 could give a sworn or unsworn statement. He further stated that the prosecution’s case was riddled with inconsistencies and that neither the main charge nor its alternative was proved to the required standards. 10. On her part, Miss Mumu, learned counsel for the state, opposed the appeal and submitted that the charges were proved to the required standards as according to the evidence of PW1, the Appellant held her breasts and buttocks. Counsel further submitted that when PW2 came to rescue PW1, the appellant tore her uniform and ran away with her bag. DETERMINATION. 11. This is a first appeal and this court has a duty to re-evaluate a re-consider the evidence adduced before the trial court afresh in order to arrive at its own independent conclusion while bearing in mind that it neither heard nor saw the witnesses testify. In Okeno vs Republic 1972 EA 32 where it was held:- “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandaya v R, [1957] E.A 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R,) [1957] E.A 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] E.A 424. 12. In the case of Muthoko & Anor [2008] KLR 297 the Court of Appeal held as follows: “It was the duty of a first appellate court to analyze the evidence and come to its own independent conclusion bearing in mind that it did not hear or see the witnesses and making allowance for that” 13. I have considered the evidence on record, the grounds of appeal and the rival submissions presented during the hearing of the appeal. I note that the main issue for determination is whether the charge of attempted defilement was proved to the required standards. 14. The starting point is what amounts to attempted defilement. In David Aketch Ochieng [2015] eKLR Makau J observed as follows on attempted defilement: “The appellant was charged and convicted with an attempted defilement contrary to Section 9 (1) of Sexual Offences Act No. 3 of 2006. What is attempted defilement? It can safely be stated to be the unsuccessful defilement. For a successful prosecution of an offence of attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises or lacerations from complainant’s vagina and/or bruises or lacerations of culprits genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration. There was absence of penetration or evidence linking the culprit with the offence of attempted defilement.” 15. In the instant case, can the encounter between the Appellant and PW1 be defined as attempted defilement? I do not think so. I say so because from the evidence adduced by PW1, she stated as follows:- “He held my right hand, Jeridah managed to escape. Accused then held me by force and struggled to lay me down. We started raising distress calls and J was also shouting for help. He seemingly wanted to defile me. He then ran away with my bag.” 16. From the above extract of the complainant’s testimony, I find that apart from the claim, by the complainant that the appellant wanted to defile, none of the alleged actions by the appellant show that there was an attempt at defilement or penetration for that matter. I further find that the in the circumstances of the case, it is not safe to conclude that the appellant’s intention was to defile the complainant. In my humble view, the mere fact that the appellant allegedly held the complainant’s hand does not qualify to be attempted defilement and neither does the same even qualify to be an act of indecent assault.

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17. Furthermore, the complainant claimed that she was in the company of one J at the time the appellant allegedly attempted to defile her. It is however quite baffling that the said J did not come to court to testify even though she is a crucial witness who could have shed light on what transpired on the material day. Courts have held that where evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. See Bukenya & Others vs. Uganda (1972) EA 549. 18. In the circumstances, I find that it was unsafe to convict the Appellant. Consequently, I hereby quash the conviction and set aside the sentence by the trial court. I direct that the appellant shall be set at liberty forthwith unless he is otherwise lawfully held. Dated and signed at NAIROBI this 18th day of January 2019 W. A. OKWANY JUDGE Dated, signed and delivered in open court at Eldoret this 30th day of January 2019. H. A. OMONDI JUDGE In the presence of: Mrs Mumo for the state Appellant present Court Assistant – Ouma

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